Yang Zhang v. U.S. Attorney General

USCA11 Case: 22-11011 Date Filed: 09/26/2022 Page: 1 of 7 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-11011 Non-Argument Calendar ____________________ YANG ZHANG, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A213-016-404 ____________________ USCA11 Case: 22-11011 Date Filed: 09/26/2022 Page: 2 of 7 2 Opinion of the Court 22-11011 Before LUCK, LAGOA, and BLACK, Circuit Judges. PER CURIAM: Yang Zhang, a native and citizen of China proceeding pro se, seeks review of: (1) the immigration judge’s (IJ) 2020 denial of his applications for asylum pursuant to 8 U.S.C. § 1158(a), with- holding of removal under 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture and Other Cruel, In- human or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c); (2) the Board of Immigration Appeals’ (BIA) 2021 sum- mary dismissal of his administrative appeal from the IJ’s order; and (3) the BIA’s 2022 denial of his motion to reopen and reconsider that dismissal. The Government moves for summary disposition, arguing because this Court lacks jurisdiction in certain respects, and the BIA’s denial of Zhang’s motion to reopen and reconsider was not otherwise an abuse of discretion, denial of Zhang’s petition for review is warranted. I. PROCEDURAL HISTORY Following a hearing, the IJ denied Zhang’s applications for asylum, withholding of removal, and CAT relief. The IJ issued a removal order to this effect on November 16, 2020. Zhang, through counsel, administratively appealed the IJ’s decision, but the BIA did not receive his appeal until December 21, 2020. In No- vember 2021, the BIA summarily dismissed Zhang’s appeal be- cause he did not file it within 30 days, as required. USCA11 Case: 22-11011 Date Filed: 09/26/2022 Page: 3 of 7 22-11011 Opinion of the Court 3 Zhang did not immediately file a petition for review with this Court. Instead, he moved the BIA to reopen his removal pro- ceedings and reconsider his appeal. He admitted he untimely filed the administrative appeal on December 21, 2020, but asserted he mailed the appeal, via United States Postal Service Priority Mail on December 10, 2020, with an expected delivery date of December 14, 2020. Zhang acknowledged the Postal Service delays did not affect existing deadlines, but asked the BIA to consider the delay and excuse the missed deadline. In support, he attached documen- tation showing he sent the notice of administrative appeal on De- cember 10, 2020, via two-day Priority Mail. The BIA denied Zhang’s motion to reopen and reconsider in March 2022. It determined reconsideration was unwarranted be- cause there was no factual or legal error in its 2021 decision. Next, it noted the post-deadline delivery of Priority Mail, which was nei- ther an overnight nor guaranteed service, was not an exceptional circumstance. Finally, it noted Zhang had presented no appropri- ate bases for sua sponte reconsideration. Shortly thereafter, Zhang filed a pro se petition for review with …

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